Citation Nr: 0924053
Decision Date: 06/26/09 Archive Date: 07/01/09
DOCKET NO. 05-04 612 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for residuals of a head
injury.
2. Entitlement to service connection for residuals of a
fractured nose.
3. Entitlement to service connection for a right leg
disability.
4. Entitlement to service connection for posttraumatic
stress disorder (PTSD).
5. Entitlement to service connection for agoraphobia.
6. Entitlement to service connection for gastroesphageal
reflux disease (GERD), claimed as duodenal disease.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
K. K. Buckley, Associate Counsel
INTRODUCTION
The Veteran served on active duty in the United States Army
from June 1958 to June 1960.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions dated January 2004
and June 2005 of the Department of Veterans Affairs (VA)
Regional Office (RO) in St. Louis, Missouri which denied the
Veteran's claims.
The issue of entitlement to service connection for GERD is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the VA Appeals Management Center (AMC)
in Washington, DC. The Veteran will be notified if further
action on his part is required.
FINDINGS OF FACT
1. The competent medical evidence does not show that the
Veteran is currently diagnosed with residuals of a head
injury.
2. The competent medical evidence does not show that the
Veteran is currently diagnosed with residuals of a fractured
nose.
3. The competent medical evidence does not show that the
Veteran is currently diagnosed with a right leg disability.
4. The Veteran did not participate in combat.
5. The Veteran's claimed in-service PTSD stressors have not
been corroborated.
6. The competent medical evidence of record serves to link
the Veteran's currently diagnosed agoraphobia to his military
service.
CONCLUSIONS OF LAW
1. Entitlement to service connection for residuals of a head
injury is not warranted. 38 U.S.C.A. § 1131 (West 2002); 38
C.F.R. § 3.303 (2008).
2. Entitlement to service connection for residuals of a
fractured nose is not warranted. 38 U.S.C.A. § 1131 (West
2002); 38 C.F.R. § 3.303 (2008).
3. Entitlement to service connection for a right leg
disability is not warranted.
38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2008).
4. The evidence of record does not include credible
supporting evidence verifying the occurrence of the Veteran's
claimed in-service PTSD stressors. 38 U.S.C.A.
§ 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2008).
5. Resolving the benefit of the doubt in the Veteran's
favor, the Veteran's currently diagnosed agoraphobia was
incurred in military service. 38 U.S.C.A. § 1131
(West 2002); 38 C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran seeks entitlement to service connection for
residuals of a head injury, residuals of a fractured nose, as
well as, a right leg disability, agoraphobia, and PTSD, all
of which he contends are due to his military service. The
issue of entitlement to service connection for GERD is being
remanded and will be addressed in the Remand section below.
In the interest of clarity, the Board will discuss certain
preliminary matters. The Board will then render a decision.
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA includes an enhanced duty on the part of VA to
notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits. The VCAA
also redefines the obligations of VA with respect to its
statutory duty to assist a claimant in the development of a
claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002).
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice, and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
After the evidence is assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each issue shall be given to the veteran. See
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008).
In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the
United States Court of Appeals for Veterans Claims (Court)
stated that "a veteran need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim. See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the Veteran and the Veteran's
representative, if any, of any information and any medical or
lay evidence not previously provided to VA that is necessary
to substantiate the claims. As part of this notice, VA is to
specifically inform the Veteran and the Veteran's
representative, if any, of which portion, if any, of the
evidence is to be provided by the Veteran and which part, if
any, VA will attempt to obtain on behalf of the Veteran. See
38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant, but not mentioning who is responsible for
obtaining such evidence, did not meet the standard erected by
the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issues currently before the
Board.
The Board observes that the Veteran was informed of the
evidentiary requirements for service connection in letters
dated June 2003, August 2003, and January 2005. The VCAA
letters indicated that in order for service connection to be
granted there must be evidence of an injury in military
service or a disease that began in or was made worse during
military service, or that there was an event in service that
caused an injury or disease; a current physical or mental
disability shown by medical evidence; and a relationship
between the disability and an injury, disease, or event in
military service.
Crucially, the RO informed the Veteran of VA's duty to assist
him in the development of his claims in the above-referenced
VCAA letters. Specifically, the letters stated that VA would
assist the Veteran in obtaining records from any Federal
agency including the military, VA medical centers, and the
Social Security Administration. With respect to private
treatment records, the letters informed the Veteran that VA
would request such records, if the Veteran completed and
returned the attached VA Form 21-4142, Authorization and
Consent to Release Information. The Veteran was also advised
in the VCAA letters that a VA examination would be scheduled
if necessary to make a decision on his claims.
In the January 2005, the RO requested the Veteran provide
details of his claimed PTSD specifically regarding the in-
service assaults and included a PTSD questionnaire. In
particular, the Veteran was told to complete the
questionnaire, provide reports of treating private
physicians, provide the dates and locations of any VA medical
or Vet Center treatment, identify possible sources of
information and evidence such as police reports or medical
treatment records for the assault or rape, and provide
supporting statements from individuals with whom the incident
was discussed as well as correspondence sent to close friends
or relatives relating to the incident. Thus, the Veteran was
provided explicit guidance as to what information and
evidence would help substantiate his PTSD claim.
The June 2003 and August 2003 VCAA letters emphasized: "You
must give us enough information about the records so that we
can request them from the person or agency that has them. If
the holder of the evidence declines to give us the records or
asks for a fee to provide them, we'll notify you. It's your
responsibility to make sure we receive all requested records
that aren't in the possession of a Federal department or
agency." [Emphasis as in originals]. The January 2005 VCAA
letter contained similar language.
Finally, the Board notes that the August 2003 and January
2005 VCAA letters specifically requested: "If there is any
other evidence or information that you think will support
your claim, please let us know. If you have any evidence in
your possession that pertains to your claim, please send it
to us." This complies with the "give us everything you've
got" provision formerly contained in 38 C.F.R.
§ 3.159(b) in that it informed the Veteran that he could
submit or identify evidence other than what was specifically
requested by the RO. [The Board observes that
38 C.F.R. § 3.159 was recently revised, effective as of May
30, 2008. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008).
The final rule removes the third sentence of 38 C.F.R. §
3.159(b)(1), which had stated that VA will request the
claimant to provide any evidence in the claimant's possession
that pertains to the claim.]
In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court
observed that a claim of entitlement to service connection
consists of five elements: (1) veteran status; (2) existence
of a disability; (3) a connection between the veteran's
service and the disability; (4) degree of disability; and (5)
effective date. Because a service connection claim is
comprised of five elements, the Court further held that the
notice requirements of section 5103(a) apply generally to all
five elements of that claim. Therefore, upon receipt of an
application for a service connection claim, section 5103(a)
and section 3.159(b) require VA to review the information and
the evidence presented with the claim and to provide the
claimant with notice of what information and evidence not
previously provided, if any, will assist in substantiating or
is necessary to substantiate the elements of the claim as
reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the
award of benefits will be assigned if service connection is
awarded.
With respect to the Veteran's service connection claims,
element (1), veteran status, is not at issue. The Veteran's
claims of entitlement to service connection were denied based
on elements (1), existence of a disability, (2) in-service
disease or injury, and (3), connection between the Veteran's
service and the claimed disabilities. As explained above, he
has received proper VCAA notice as to his obligations, and
those of VA, with respect to those crucial elements.
As discussed below, the Board is denying four of the
Veteran's claims, so elements (4) and (5) remain moot as to
those issues. The board is granting the claim of entitlement
to service connection for agoraphobia. With respect to
elements (4) and (5), degree of disability and effective
date, any lack of notice is harmless at this point in time.
The Board is confident that prior to assigning a disability
rating and effective date, the agency of original
jurisdiction will provide the Veteran with appropriate
Dingess notice.
As there is no indication that there exists any evidence
which could be obtained to affect the outcome of this case,
no further VCAA notice is necessary. See Dela Cruz v.
Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not
required where there is no reasonable possibility that
additional development will aid the veteran].
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. See 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2008).
In the instant case, the Board finds that reasonable efforts
have been made to assist the Veteran in obtaining evidence
necessary to substantiate his claims and there is no
reasonable possibility that further assistance would aid in
substantiating them. The evidence of record includes the
Veteran's service treatment records, service personnel
records, the Veteran's statements, lay statements, and
private treatment records.
The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006),
held that a medical examination is required when (1) there is
evidence of a current disability,
(2) evidence establishing an "in-service event, injury or
disease," or a disease, manifested in accordance with
presumptive service connection regulations, occurred which
would support incurrence or aggravation, (3) an indication
that the current disability may be related to the in-service
event, and (4) insufficient evidence to decide the case.
However, medical examinations are unnecessary in this case
with respect to the head injury, nose fracture, and right leg
disability because there is no objective and competent
evidence showing that the Veteran is currently diagnosed with
a right leg disability or residuals of a head or nose injury.
Under such circumstances an examination is not required.
With respect to the PTSD claim, a medical examination is not
required because the Veteran's in-service stressors have not
been corroborated. Additionally, as the agoraphobia claim is
being granted below, a VA examination is unnecessary.
The facts of this case are different than the facts in
Charles v. Principi, 16 Vet. App. 370 (2002), in which the
Court held that VA erred in failing to obtain a medical nexus
opinion where evidence showed acoustic trauma in service and
a current diagnosis of tinnitus. Significantly, in this case
there is no competent medical evidence of a current diagnosis
of head, nose, or right leg disabilities and there is no
corroborative evidence of a verified in-service PTSD
stressor.
Additionally, VA's duty to assist generally includes
obtaining records from Social Security Administration (SSA).
See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). The RO
attempted to obtain the Veteran's SSA records. However, in
August 2003 the SSA informed the RO that it did not have any
records for the Veteran. See Formal Finding of
Unavailability dated August 2003. Based upon this record,
the Board finds that additional attempts to obtain these
records would be futile. The Board observes that, where
records are unavailable, "VA has no duty to seek to obtain
that which does not exist." See Counts v. Brown, 6 Vet. App.
473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237
(1993).
In short, the Board has carefully considered the provisions
of the VCAA in light of the record on appeal, and for the
reasons expressed above, finds that the development of the
issues has been consistent with said provisions.
The Board also observes that all due process concerns have
been satisfied.
See 38 C.F.R. § 3.103 (2008). The Veteran has retained the
services of a representative who has provided evidence and
argument on his behalf. He declined the option of testifying
at a personal hearing before a Veterans Law Judge.
Accordingly, the Board will proceed to a decision as to the
issues on appeal.
(CONTINUED ON NEXT PAGE)
1. Entitlement to service connection for residuals of a head
injury.
2. Entitlement to service connection for residuals of a
fractured nose.
3. Entitlement to service connection for a right leg
disability.
Because the claims of entitlement to service connection for
residuals of a head injury, a fractured nose, and right leg
disability involve the application of identical law to
similar facts, for the sake of economy, the Board will
address them together.
Relevant law and regulations
Generally, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. See 38 U.S.C.A. § 1131 (West 2002);
38 C.F.R. § 3.303 (2008).
In order to establish service connection for the claimed
disorder, there must be
(1) medical evidence of a current disability; (2) medical, or
in certain circumstances, lay evidence of in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between the claimed in-service
disease or injury and the current disability. See Hickson v.
West, 12 Vet. App. 247, 253 (1999). The determination as to
whether these requirements are met is based on an analysis of
all the evidence of record and the evaluation of its
credibility and probative value. See Baldwin v. West, 13
Vet. App. 1, 8 (1999).
Service connection presupposes a diagnosis of a current
disability. See Rabideau v. Derwinski, 2 Vet. App. 141
(1992). A "current disability" means a disability shown by
competent medical evidence to exist. See Chelte v. Brown, 10
Vet. App. 268 (1997).
Analysis
With respect to Hickson element (1), the medical evidence of
record is completely absent any diagnosis of current
disabilities of the head or nose. The Veteran has submitted
private treatment records in an effort to substantiate his
claims. Crucially, no diagnosed residuals of head or nose
injuries are contained in the identified evaluation and
treatment records contained in the VA claims folder.
Moreover, with regard to the right leg claim, the Veteran has
specifically asserted that he suffers from a right leg tumor
which formed on the site of a scar which pre-existed service.
See, e.g., the PTSD questionnaire dated June 2004. However,
there is no medical evidence indicating that the Veteran is
currently diagnosed with a right leg tumor or any other right
leg disability.
The Veteran contends that he suffers from right leg pain [see
the VA Form 9 dated February 2005]. However, symptoms such
as pain alone are not sufficient to establish the existence
of a disability. See Sanchez-Benitez v. West, 13 Vet. App.
282 (1999) [symptoms, without a diagnosed or identifiable
underlying malady or condition, does not in and of itself
constitute a disability for which service connection may be
granted].
The Veteran has been accorded ample opportunity to present
competent medical evidence in support of his claims. He has
failed to do so. See 38 U.S.C.A.
§ 5107(a) (West 2002) [it is the claimant's responsibility to
support a claim for VA benefits]. The Court has held that
"[t]he duty to assist is not always a one-way street. If a
veteran wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence." See Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991).
To the extent that the Veteran or his representative are
contending that the Veteran suffers from disabilities of the
head, nose, or right leg, it is now well-established that lay
persons without medical training, such as the Veteran and his
representative, are not competent to comment on medical
matters such as diagnosis, date of onset or cause of a
disability. See Espiritu v. Derwinski, 2 Vet. App. 491, 494-
495 (1992); see also 38 C.F.R. § 3.159(a)(1) [competent
medical evidence means evidence provided by a person who is
qualified through education, training, or experience to offer
medical diagnoses, statements, or opinions]. Any such
statements offered by the Veteran and his representative in
support of the claims are not competent medical evidence and
do not serve to establish the existence of said disabilities.
Because the competent medical evidence of record does not
substantiate current diagnoses of a right leg disability or
any residuals of injuries to the head or nose, the first
element of 38 C.F.R. § 3.304(f) is not met, and service
connection is not warranted on that basis. See Degmetich v.
Brown, 104 F.3d 132 (Fed. Cir. 1997); see also Gilpin v.
Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection
cannot be granted if the claimed disability does not exist].
In sum, for reasons and bases expressed above, the Board
concludes that the preponderance of the evidence is against
the Veteran's claims of entitlement to service connection for
residuals of a head injury, residuals of a fractured nose,
and a right leg disability. The benefits sought on appeal
are denied.
4. Entitlement to service connection for PTSD.
Relevant law and regulations
The relevant law and regulations pertaining generally to
service connection are set forth above and will not be
repeated.
Service connection - PTSD
A specific VA regulation applies to PTSD claims. In order
for service connection to be awarded for PTSD, three elements
must be present: (1) a current medical diagnosis of PTSD; (2)
credible supporting evidence that a claimed in-service
stressor actually occurred; and (3) medical evidence of a
causal nexus between the current PTSD symptomatology and the
claimed in-service stressor. See 38 C.F.R.
§ 3.304(f) (2008); see also Moreau v. Brown, 9 Vet. App. 389
(1996).
With regard to the second PTSD criterion, the evidence
necessary to establish that the claimed stressor actually
occurred varies depending on whether it can be determined
that the veteran "engaged in combat with the enemy." See 38
U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2008).
Where a determination is made that the veteran did not
"engage in combat with the enemy," or the claimed stressor is
not related to combat, the veteran's lay testimony alone will
not be enough to establish the occurrence of the alleged
stressor. See Moreau at 395; Dizoglio v. Brown, 9 Vet. App.
163, 166 (1996). In such cases, the record must contain
service records or other credible evidence that supports and
does not contradict the veteran's testimony. See Doran v.
Brown, 6 Vet. App. 283, 289 (1994). Moreover, except as
provided below, a medical opinion diagnosing PTSD does not
suffice to verify the occurrence of the claimed in-service
stressors. See Moreau, at 395-396.
In Patton v. West, 12 Vet. App. 272 (1999), the Court held
that special consideration must be given to claims for PTSD
based on sexual assault. In particular, the Court held that
the provisions in M21-1, Part III, 5.14(c), which address
PTSD claims based on personal assault, are substantive rules
that are the equivalent of VA regulations and must be
considered. See also YR v. West, 11 Vet. App. 393, 398-99
(1998).
Paragraph 5.14c states that, in cases of sexual assault,
development of alternate sources for information is critical.
There is provided an extensive list of alternative sources
competent to provide credible evidence that may support the
conclusion that the event occurred, to include medical
records, military or civilian police reports, reports from
crisis intervention centers, testimonial statements from
confidants, and copies of personal diaries or journals. See
M21-1, Part III, 5.14(c)(8). Also of particular pertinence
are the provision of subparagraphs (8) and (9) of Section
5.14 which state that "[b]ehavior changes that occurred at
the time of the incident may indicate the occurrence of an
in-service stressor." The Court in Patton stated that such
changes in behavior should be examined and clinically
interpreted to determine whether they constitute evidence of
"[v]isits to a medical or counseling clinic or dispensary
without a specific diagnosis or specific ailment."
Analysis
The Veteran essentially contends that he suffers from PTSD as
a result of beatings by fellow soldiers and intimidation by
his fellow soldiers and military superiors. See Veteran's
statement dated June 2004.
As discussed above, in order to establish service connection
for PTSD, there must be: (1) a current medical diagnosis of
PTSD; (2) credible supporting evidence that a claimed in-
service stressor actually occurred; and (3) medical evidence
of a causal nexus between the current PTSD symptomatology and
the claimed in-service stressors. See 38 C.F.R. § 3.304(f)
(2008); see also Moreau, supra.
With respect to element (1), current diagnosis, there a
numerous continuing diagnoses of PTSD documented in the
medical evidence of record. See, e.g., treatment record from
T.L., L.C.S.W., dated May 2004 and letter from Dr. J.B. dated
May 2005. Accordingly, element (1) of 38 C.F.R. § 3.304(f)
is satisfied.
With respect to element (3), medical nexus, there are several
evaluation and examination reports of record which link the
Veteran's PTSD to his alleged in-service stressors. See,
e.g., the letter from Dr. J.B. dated May 2005. Accordingly,
element (3) has arguably been established.
With respect to critical element (2), combat status or
verified stressors, the Board initially notes that the record
does not reflect, and the Veteran does not contend, that the
stressors upon which he relies are related to combat or POW
experiences. Thus, the record must contain service records
or other credible evidence which corroborates the reported
stressors. See 38 C.F.R. § 3.304(f) (2008).
The Veteran contends that he was assaulted by fellow
soldiers. See the Veteran's PTSD questionnaire dated June
2004. He also vaguely referred to threats and intimidation
by fellow soldiers and military superiors. A review of the
Veteran's service records demonstrates a lack of evidence
tending to corroborate the Veteran's reported in-service
stressors.
The Board must determine the credibility and probative value
of the evidence.
See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1977) and
cases cited therein [holding that the Board has the duty to
assess credibility and weight to be given to the evidence].
As a lay person, the Veteran is competent to provide evidence
of observable events, including having been assaulted. See
Savage v. Gober, 10 Vet. App. 488, 496 (1997). The question
thus becomes one of credibility.
The Veteran specifically asserts that he was assaulted by
fellow soldiers at three different times. The Board notes
that in his June 2004 PTSD questionnaire, the Veteran stated
that the first assault occurred within the first eight weeks
of service, while the second and third assaults occurred
sometime between June 1958 and June 1960. However, in a
February 2005 PTSD questionnaire, the Veteran indicated that
the first two assaults occurred within twenty-four hours.
Specifically, he stated that the first beating took place on
July 26, 1958 and he was also beaten by the same people the
following morning. The Veteran contends that he developed a
cyst on his neck as a result of the assaults and suffered
extensive damage to his teeth requiring multiple extractions.
See, e.g., the VA Form 9 dated February 2005.
The Veteran indicates that the third assault occurred on
approximately August 22, 1959. See the Veteran's PTSD
questionnaire dated February 2005. The Veteran states that
he did not report the August 1959 assault, but his injuries
were witnessed by his wife. To corroborate this report, the
Veteran offered a statement from his wife dated February 2005
in which she states that she met the Veteran at an off-base
gas station and found him to be "totally bloody and beaten;
face and eyes were filled with cuts and abrasions; eyes were
swollen shut." See the statement of M.C. dated February
2005. She further stated that the Veteran refused to seek
medical treatment due to fear of retaliation.
Crucially, aside from the recent statements of the Veteran
and his spouse, made in connection with the Veteran's claim
for monetary benefits from the government [which would
obviously benefit the spouse as well as the Veteran], the
record contains not a scintilla of evidence which indicates
that the Veteran was assaulted in service.
The Board has thoroughly reviewed the Veteran's service
treatment records and notes that the Veteran was treated for
a cyst of the neck in August 5, 1958. However, there was no
mention of trauma. Similarly, the Board notes that although
the Veteran's dental records document teeth extractions;
however, such records are pertinently absent any indication
that the extractions were performed due to dental trauma. In
particular treatment records from October 1959 fail to
document any evidence of bruises or scars to the Veteran's
face or eyes.
In short, the contemporaneous evidence is devoid of any
reference to assaults or intimidation and, instead documents
routine medical treatment and an absence of physical trauma.
It strains credulity to the breaking point that the Veteran
would
Have sustained significant injuries from multiple beatings as
he cont ends and yet there is no hind of same in his medical
records.
The Board also notes that the Veteran filed a service
connection claim in March 1987 and made no mention of his
alleged in-service assaults. The Board finds it significant
that the Veteran did not raise the issue of in-service
assaults until May 2003, over forty years after his discharge
from military service.
In the June 2004 PTSD questionnaire, the Veteran also vaguely
asserted "a jeep accident during driver's training" and
"lack of medical attention" as in-service stressors. The
Board notes that service treatment records are pertinently
absent any indication that the Veteran was involved in a jeep
accident during his military service. Moreover, there is
absolutely no evidence, aside from the Veteran's own
statements, that the Veteran failed to receive appropriate
medical attention during service.
The Board places far greater probative value on the
pertinently negative contemporaneous service department
records than it does on the more recent statements of the
Veteran and his spouse. See Curry v. Brown, 7 Vet. App. 59,
68 (1994) [contemporaneous evidence has greater probative
value than history as reported by the veteran]; see also
Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting
that it was proper to consider the veteran's entire medical
history, including the lengthy period of absence of complaint
with respect to the condition he now raised]. Such records
are more reliable, in the Board's view, than the Veteran and
his spouse's unsupported assertion of events over forty years
past.
See also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd
sub nom, Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir.
2002) [nothing that the definition of evidence encompasses
"negative evidence" which tends to disprove the existence
of an alleged fact]. The Veteran's statements and those of
his spouse are self-serving and are unsupported by his
service records. See Cartright v. Derwinski, 2 Vet. App. 24,
25 (1991). [VA cannot ignore a veteran's testimony simply
because the veteran is an interested party; personal interest
may, however, affect the credibility of the evidence].
Accordingly, the Board finds the Veteran's statements, and
that of his spouse, to be lacking in credibility and
probative value.
In addition to the statement of the Veteran's spouse, the
record also contains lay statements from B.W. and R.H.
However, this lay evidence does not contain any personal
first-hand knowledge of the in-service assaults, but rather
is largely limited to vague statements regarding how the
Veteran changed after his military service. As such, the
Board does not assign significant weight of probative value
to this lay evidence.
In short, the Board finds that a preponderance of the
evidence is against the existence of the purported in-service
assaults, intimidation, or any other in-service stressor.
Hickson element (2) has not been met, and the Veteran's claim
fails on that basis alone.
Accordingly, for reasons and bases expressed above, the Board
concludes that the preponderance of the evidence is against
the Veteran's claim of entitlement to service connection for
PTSD. The benefit sought on appeal is therefore denied.
5. Entitlement to service connection for agoraphobia.
Relevant law and regulations
Continuity of symptomatology
For the showing of chronic disease in service, there is
required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." When the disease identity is established, there
is no requirement of an evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or where the diagnosis of chronicity may be
legitimately questioned. See 38 C.F.R. § 3.303(b) (2008).
The mere fact of an in-service injury is not enough; there
must be evidence of a chronic disability resulting from that
injury. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. See 38 C.F.R. §
3.303(b) (2008).
Analysis
The Veteran is claiming entitlement to service connection for
agoraphobia, which he claims to have suffered as a result of
his military service. See the Veteran's Application for
Compensation and/or Pension dated May 2003.
It is undisputed that the Veteran currently suffers from
agoraphobia, which is repeatedly documented in the Veteran's
evaluation and treatment records. See the letter from T.L.,
L.C.S.W., dated September 2003.
The Board notes that service treatment records do not
indicate that the Veteran was diagnosed with agoraphobia or
any other acquired psychiatric disability during his military
service. However, after reviewing the file, the Board
believes that service connection may be granted based on
continuity of symptomatology. See
38 C.F.R. § 3.303(b), discussed above.
The Veteran asserts that he began to experience nervous
trouble and anxiety during his military service.
Consistently, the Veteran did note a history of "nervous
trouble" in his May 1960 separation examination report. The
Veteran stated that he used amphetamines following service to
give him the courage to "go out." See the Start of Care
Assessment dated May 2003. According to him, he landed in
legal trouble in 1973, stopped using amphetamines and did
not work again. Further, the Veteran reports that he sought
medical treatment for his extreme anxiety, including
agoraphobia, immediately following his discharge from
military service.
The Veteran and his spouse report that the Veteran received
treatment from 1960-1977 for "nerves". See the statement
of S.T., L.C.S.W. dated February 2005.
The Board has no reason to disbelieve the Veteran's
contentions, which are consistent with the lay statements of
record from B.W. and R.H. Specifically, R.H. describes the
progression of the Veteran's agoraphobia. She indicates that
after the Veteran was released from service, "he worked for
himself . . . [and] would not go anywhere without his wife."
R.H. further states that the Veteran has not left his home in
thirty years.
Crucially, there is no evidence of record which suggests that
the Veteran's agoraphobia was caused by anything other than
military service. It is undisputed that the Veteran
struggled with anxiety following his discharge from military
service, was subsequently diagnosed with agoraphobia, and has
not left his home in over thirty years.
Based on the above-cited evidence, the Board has no reason to
doubt the Veteran's assertions that he has suffered from
agoraphobia since leaving military service.
See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Savage v.
Gober, 10 Vet. App. 488, 495-98 (1997). Continuity of
symptomatology is therefore established. The benefit sought
on appeal is accordingly allowed.
ORDER
Entitlement to service connection for residuals of a head
injury is denied.
Entitlement to service connection for residuals of a
fractured nose is denied.
Entitlement to service connection for a right leg disability
is denied.
Entitlement to service connection for PTSD is denied.
Entitlement to service connection for agoraphobia is granted.
REMAND
6. Entitlement to service connection for GERD, claimed as
duodenal disease.
The Veteran is seeking entitlement to service connection for
GERD. After having carefully considered the Veteran's claim,
and for reasons expressed immediately below, the Board finds
that this case must be remanded for additional evidentiary
development.
Reason for remand
In general, in order to establish service connection for the
claimed disorder, there must be (1) medical evidence of a
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
current disability. See Hickson, supra.
With respect to Hickson element (1), current disability,
private treatment records document a continuing diagnosis of
GERD. See, e.g., the treatment records of Dr. W.A.J. dated
October 2002 and August 2003. Accordingly, Hickson element
(1) is satisfied.
As to element (2), in-service disease or injury, the Veteran
indicated a history of "frequent indigestion" in his May
1960 separation examination. Service treatment records
document the Veteran's numerous complaints of an upset
stomach.
A service treatment record dated August 1958 documented a
diagnosis of mild gastritis. The Veteran was diagnosed with
duodenitis in April 1959. Accordingly, Hickson element (2)
is satisfied.
As to Hickson element (3), medical nexus, none of the medical
records currently associated with the Veteran's VA claims
folder offer an opinion as to a possible causal relationship
between the Veteran's currently diagnosed GERD and his in-
service gastrointestinal problems.
This case presents certain medical questions which cannot be
answered by the Board. See Colvin v. Derwinski, 1 Vet. App.
171, 175 (1991) [the Board is prohibited from exercising its
own independent judgment to resolve medical questions].
These questions must be addressed by an appropriately
qualified physician. See Charles, supra; see also 38 C.F.R.
§ 3.159(c)(4) (2008) [a medical examination or opinion is
necessary if the information and evidence of record does not
contain sufficient competent medical evidence to decide the
claim].
Accordingly, the case is REMANDED for the following action:
1. VBA should arrange for a physician
with appropriate expertise to
review the Veteran's VA claims
folder, including his service
treatment records, and provide an
opinion as to whether it is at
least as likely as not that the
Veteran's currently diagnosed GERD
was incurred in or aggravated by
his military service. If the
reviewing physician determines that
an additional examination and/or
diagnostic testing is necessary,
this should be accomplished.
A report should be prepared and
associated with the Veteran's VA
claims folder.
2. After undertaking any additional
development which it
deems to be necessary, VBA should then
readjudicate the Veteran's claim.
If the benefit sought on appeal remains
denied, the Veteran and his
representative should be provided a
supplemental statement of the case and
given an appropriate opportunity to
respond. Thereafter, the case should be
returned to the Board for further
consideration, if otherwise in order.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2008).
______________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs